Lord Goldsmith: My Lords, we need a Bill to maintain within law the protections and the continuity that we have. The decision to leave the European Union having been made—whatever one thinks of it—the consequence will be that many laws on which we presently depend will fall away unless steps are   taken to keep them in place. But that does not mean just any Bill. This legislation is so serious and so important—for ourselves, for our citizens, for our children—that we have to get it right, and getting a complicated and important piece of legislation right is one of the things that this House does particularly well. We need to make it fit for purpose, as my noble friend Lady Smith of Basildon said, or—in the rather more graphic terms of the noble Baroness, Lady Boothroyd—copper-bottomed, ironclad and storm-proof. She is absolutely right, because when the Bill becomes an Act it will have to withstand many storms from citizens hoping that it still delivers protections for their rights, and we must not disappoint them; and from lawyers, and I speak as one, hoping to thwart them or to provide even more.
I have never before heard a debate in which so many Lords from all parties and from none have criticised a Bill for its technical deficiencies, its assault on our constitution, its assault on parliamentary sovereignty, its extraordinary switch of power to Ministers, the jeopardy it creates to our devolution settlement and the legal uncertainty it creates, not to mention the risk it poses to the peace in Ireland and the Good Friday agreement. Whatever the differences on other matters—leave or remain, a second referendum or not—there seems to be a wide measure of agreement that the Bill, as it stands, does not do what is required to make it fit for purpose. Wanting to make it fit for purpose is not putting a spanner in the works. It is not frustrating the Bill or the people’s will. The noble Baroness, Lady Altmann, was right to make that point. So there will be many amendments that we will have to consider, such as dropping the word “appropriate” in many places for something much tighter. I hope the Government heard the powerful challenge to it from the noble Lord, Lord Wilson of Dinton—who as a former Cabinet Secretary and, indeed, Permanent Secretary of the most legislating department of all, the Home Office, knows a thing or two about legislation—and his comments on what Ministers might do and delegated powers. Indeed, I hope they heard the comments of the noble Lord, Lord Bichard, with his experience in local and central government.
It has been a privilege to hear so many excellent speeches and outstanding contributions, such as those from the noble Lords, Lord Higgins and Lord Patten of Barnes, and the noble Baroness, Lady Boothroyd, not to mention those from this side, such as the noble Lords, Lord Liddle and the noble and learned Lord, Lord Judge—as well as some unforgettable images, such as the gangplank into thin air of the noble Lord, Lord Bridges; the nervous maiden aunts of the noble Lord, Lord Lisvane, settling down to a Quentin Tarantino movie; or the rather worrying image conjured up by the noble Lord, Lord Cormack, of somebody—and I am not quite sure how many people—getting into a bath to sing. But to make this Bill fit for purpose requires in my mind at least three objectives: to make sure there is legal certainty after the Bill is passed; to ensure that protections for the people, workers and women of this country, and everyone else, are not diminished—I pay tribute here to my noble friend Lady Crawley for rightly pointing out how European law has protected women; and, thirdly, to do so in a  way which maintains the critical elements of our constitution, including devolution and, above all, the sovereignty of Parliament.
The damage this Bill will do to our constitution, if not significantly amended, has been powerfully described by a number of noble Lords and in the brilliant report of our Constitution Committee. They are right to say that this Bill, as it stands, is constitutionally unacceptable, including the hugest transfer of power, as the noble Lord, Lord Lisvane, said. They are right to say that it risks undermining legal certainty in a number of ways.
I want to say, in the short time I have, a word or two about the European Charter of Fundamental Rights. I declare an interest in that I was, as many Members of the House will know, the representative of the Prime Minister—in fact, the United Kingdom Government representative—in the negotiation of the charter, so I had a very close involvement in its drafting. A number of other Members of your Lordships’ House were also involved. The noble Lord, Lord Bowness, was a representative of the House with my noble friend Lady Howells of St Davids as his alternate. The noble Lord, Lord Kirkhope, was a Member of the European Parliament delegation, while the noble Lord, Lord Chidgey, was at the time an alternate Member representing the House of Commons. I mention those noble Lords not to share with them any of the criticisms that have been made of the charter, but to illustrate something that is not often recalled about it. It was drawn up by a wide body representing Parliaments, the European Union institutions and Governments.
I need also to declare that I have spoken and written many times on the charter because of my close involvement with its drafting. I have no doubt that during the coming debates, some of what I said or have written will be pushed back to me, because it is the case that we in the United Kingdom were anxious to avoid confusion with other rights, in particular the European Convention on Human Rights, and so emphasised the limited role of the charter. But that was then and a lot has happened since. The charter has been relied on in national and supranational courts, it has been talked about a great deal, and in Committee we will have to look at some of this. We need to remember that the rights in the charter do not derive only from the ECHR, as is sometimes thought, but from a number of sources, including EU law as well as general principles of law which have no other individual legislative base. It also adds important remedies which do not otherwise exist.
That brings me to a point made by a number of noble Lords, including the noble Baroness, Lady D’Souza, my noble friends Lady Whitaker and Lady Blackstone, and by the noble Lord, Lord Warner. Why are the Government so determined that the one element of protection that will not be kept in place after the Bill has been passed is the Charter of Fundamental Rights? They say that there is no need because all the rights are protected in any event. If that is so, what is the harm in keeping it in place? If it is not the case and removing the charter will come, as many people believe, to diminish the protections they currently have, that would be a bad turn. In fact there are a number of good reasons why we need to keep the charter—reasons  enumerated by, for example, the Joint Committee on Human Rights in the commentary in its report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. I respectfully commend that to noble Lords. Six powerful reasons are given why we need to keep the charter.
According to the Guardian, one of the new Brexit Ministers, Suella Fernandes, has said that exiting the EU Charter of Fundamental Rights would “avoid” extra protections. If that is what is happening, that is not maintaining the protections which currently exist in this country. Even if it were right that the protections add nothing, why remove them? It will mean that the rights in the charter from which we and our fellow citizens should benefit will be less accessible and less visible. That is because making rights visible and accessible was one of the key purposes of the charter. It would be mean-spirited to remove it. To make a change in this Bill to reduce the visibility and accessibility of rights, even if eventually they can all be found somewhere else is—I say it again—mean-spirited. Having and celebrating rights, not hiding them but being proud of them, is the mark of a good, decent culture. That is the sort of culture and country in which I want my children and grandchildren to grow up.

Lord Northbrook: My Lords, I respect and support the principle of the Bill as a key piece of legislation which will repeal the European Communities Act 1972 but, at the same time, copy EU laws on to the UK statute book to ensure a smooth transition. At this stage, I am not going to rehearse the problems that many other noble Lords have identified with the Henry VIII powers, which are equivalent to the Statute of Proclamations of 1539, contained in Clauses 7 to 9 and Clause 17. Nor am I going to go into detail about my concerns with Clause 11 and the effect of the Bill on the devolved Administrations. I will only point out—as many other noble Lords have done—the criticism in the cross-party Constitution Committee’s recent report on these clauses, as well as the Hansard Society’s concerns.
I will instead focus on the Bill’s proposed use of legislation via statutory instruments, as has already been analysed by the noble and learned Lord, Lord Judge. As many noble Lords have stated, between 800 and 1,200 separate items will be made in this way, according to MPs in the other place. I welcome the sifting committee that has been proposed by the other place, but it needs to go further. At the moment, the Bill’s proposed way for parliamentary discussion of these items will be the automatic negative procedure. In this House, such items are put on the Order Paper and there are 14 days to pray against them—if this happens, they are then discussed on the Floor of the House. Of course, if noble Lords do not read the House’s business papers in detail every day, they will be blissfully unaware that secondary legislation is sailing through by default—especially on an Order Paper such as today’s, on which noble Lords may not have got as far as page 18. No negative procedure statutory instruments have been turned down in the other place for 38 years, and only 17 have been turned down since 1950 according to the noble and learned Lord, Lord Judge.
If, on the other hand, the proposed statutory instruments are to be discussed by way of an affirmative procedure, they will automatically be taken on the Floor of the House. This is much more satisfactory.  To support my argument, I pray in aid the recent report of our Delegated Powers and Regulatory Reform Committee. Summary point 5 states:
“In the absence of a convincing explanation to the contrary, the affirmative procedure should apply to Henry VIII powers under clauses 7 to 9 and 17 that allow Acts of Parliament to be amended or repealed”.
In summary point 6, the report continues:
“Ministers should not have an unfettered choice to apply the negative or the affirmative procedure for statutory instruments under those clauses”.
As an alternative, the committee proposed a sifting mechanism and that all instruments should be laid in draft before Parliament, and that either the affirmative or negative procedure should be proposed. It recommends that where the Minister proposes an affirmative procedure it should apply, but suggests a different process where the Minister proposes a negative procedure. It states:
“a parliamentary committee has 10 sitting days in which to recommend the affirmative procedure instead. If no such recommendation is made, the negative procedure applies”.
Finally, the committee believes:
“Where the committee recommends the affirmative procedure, it applies unless the relevant House rejects the committee’s recommendation within a further period of five sitting days”.
Continuing in the same area, I highlight two more changes recommended by our Delegated Powers Committee. Summary point 3 says:
“Regulations under clause 14 stipulating exit day(s) should be subject to the affirmative procedure”.
At the moment, exit days means such days as a Minister of the Crown shall appoint. This would be solely in the power of the Minister. Thus anyone passing this Bill must be prepared to be a spectator to what the transitional measures will be and how they will operate. This is not satisfactory. As an aside, my personal preference would be to stay in the single market and customs union at least for the transitional period.
The committee also criticises Schedule 4 with regard to taxation. The report says:
“All regulations made under Schedule 4 which introduce or increase fees should be subject to the affirmative procedure”.
I agree.
I do not have the time to go into the Delegated Powers Committee’s concerns on sub-delegation powers leading to tertiary legislation, as set out in the UCL and Bingham Centre briefing on the Bill.
Like others, I ask the Minister whether he will put down amendments to satisfy the concerns of our constitution and delegated powers committees. I feel that these are really necessary to make this a better Bill. Could he also answer my and many other noble Lords’ concerns on the devolved Administrations issue?

Lord McConnell of Glenscorrodale: My Lords, if the Whips arranged the speaking order for tonight’s debate in order that I might be provoked into responding to some of the more outlandish comments of the noble Lord, Lord Cavendish, I am afraid that I shall disappoint them and try to stick to my script. I might be in a minority in your Lordships’ House in that I was not old enough to vote in the 1970s European referendum, so I cannot start my speech by saying how I voted back then—but I can start by saying that my whole adult life I have always believed strongly in the European Union and its predecessors. I would probably go further than most Members of your Lordships’ House by saying that I believe strongly in the concept of shared sovereignty at the European level. I believe it is consistent with a belief in shared sovereignty between the four nations of the United Kingdom. I do not see any discrepancy between a belief that that works in the UK and a belief that it works in the European Union as well.
I voted remain. I was dismayed by the campaign that promoted that cause—but I did vote remain. However, I accept the result, and it would be very wrong if this unelected House chose to try in any way to obstruct the will of the people as expressed in June 2016. I shall not support moves designed to do that.
I also wish we had more opportunity now—a year from exit day—for discussion of the immediate implications of the Brexit vote. This is not the time or the place to debate the future of, for example, our development aid relationship with the European Union, or the nature of those trading relationships that should, in my view, be based as much on fair trade as free trade. But it is the time and place to discuss this Bill. I will highlight two points of particular concern to me.
First, there have been many fabulous contributions from noble Lords across the House over these two about fundamental rights, highlighting in particular employment rights and so on, but I raise the issue of children’s rights. If the issue of consistency of rights and consistency of application of European law in UK law is not handled correctly, if we do not couple that with an appropriate approach to the consistency of the justice mechanisms that exist across Europe just now to protect children, and if we do not take an appropriate approach in the forthcoming immigration Bill to child migrants, it will be the most vulnerable children who fall through the net that is created. We need to be very aware of that. There are many interests that I will promote in your Lordships’ House in the coming weeks—employment rights and other rights mentioned in the charter—but issues around children’s rights could lead to the worst impact falling on the most vulnerable. We need to be very careful to protect the consistency and application of rights in relation to children in our forthcoming debates.
My second point relates to devolution. While I am sure that there are faults on both sides—I think the Scottish Government need to be a bit more practical and positive in their approach to this issue, as do the UK Government—I cannot believe the situation that the UK Government have got themselves into over devolved responsibilities. The initial devolution settlement was based not just on 20 years of debate, national consensus and a settled will, but on a rigorous application of political and intellectual thought to make sure that the settlement created in 1999 would stand the test of time. Through all the ups and downs of politics in the last 18 or 19 years, the legal responsibilities of the devolved Administrations have very rarely been subject to a successful challenge. That rigour, applied particularly by my noble and learned friend Lord Irvine but also by other colleagues in the Cabinet back in 1997 and 1998, has stood the test of time. To try to overturn that in any way at the moment is either really incompetent or very sleekit indeed. The Government need to respond to this, not by springing amendments on your Lordships’ House at the last minute, but through proper, open and transparent discussion that raises the common frameworks and perhaps, at times, common legislation required at the UK level in some of these areas, but which is firm and clear that, where responsibilities were devolved in 1999 or subsequently, they will continue to be devolved after 2019.
It is a matter of real regret that the Government have not used this opportunity to try to refresh or regenerate the Government of the United Kingdom. If we are to take back control—however much some of us regret the decision and the implications for our interdependent world of this move back towards the nation state—we should do so on the basis that we reinvigorate our democracy at the same time. There is an opportunity here to change the relationship between the UK Government and the three devolved Governments of the United Kingdom. It is not yet too late to take that opportunity, either in the next 12 months or in the two-year transition period, for a combination of common frameworks, with Ministers sharing decision-making at a UK level between the devolved Governments and the UK Government on an equal, respectful basis in certain areas, and for the further devolution of powers to allow the people of Scotland, Wales and Northern Ireland to have full control where that is appropriate. The opportunity still exists and the Government should take it.

Lord Forsyth of Drumlean: Ah, Thomas Cromwell.

Lord Forsyth of Drumlean: In which case I withdraw entirely my criticism. But some people drew the parallel between taking powers away from Parliament and this Bill, whereas actually, if there is a historical parallel, it is the restoration of powers, because it is returning powers that were given away in the 1972 Act, which this Bill will repeal. Some 20,000 EU laws were brought into British law over which Parliament had no say whatever. So I take with a pinch of salt those who suggest that this is a terrible Bill because it is denying Parliament the ability to decide matters. It is returning to Parliament the ability, once this Bill is passed and we are out of the European Union, to alter the Bills as we see fit.
I voted to join the European Community, and in my youth—I have to confess—I was once a member of the Young European Federalists—